JUDGMENT
Abdul Hamid Mohamad FCJ:
The appellants before us are husband and wife. So are the respondents. The first appellant and the first respondent are sisters. The appellants are the natural parents of Nazirah, the child in question. Due to the first appellant’s ill-health, soon after Nazirah was born, she was given to the first respondent to be taken care of. That was in December 1987. However, in September 2000, the appellants filed a summons in Syariah Subordinate Court at Georgetown for an order of custody of the child. The respondents did not object to the summons. The Syariah Court gave the appellants the custody of the child until she reaches the age of 16 years and thereafter to be returned to the respondents. The child, however, later on went back to live with the respondents. The respondents refused to return the child to the appellants. On 21 November 2000, the appellants applied in the same Syariah Court for an order that the respondents be committed to prison for breaching the custody order. However, on 4 May 2001 the learned Syariah Court Judge dismissed the application as he found that the respondents had shown reasonable cause why they should not be committed to prison. The appellants did not appeal against that order and the child continued to live with the respondents.
On 12 December 2001, the appellants filed a notice of motion praying for the issue of a writ of habeas corpus against the respondents for them to hand over the child to the appellants.
The learned Judicial Commissioner dismissed the application on the preliminary issue that the High Court had no jurisdiction over the matter. The appellants appealed to this court. We dismissed the appeal and we now give our reasons.
Learned counsel for the appellants argued that as the Syariah Courts had no jurisdiction to issue the writ of habeas corpus, therefore the civil court had the jurisdiction. He relied on Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481 (CA); [1999] 2 SYA 13.
This appeal has again raised the question of jurisdiction of the Syariah Court and the High Court. If the Syariah Court has jurisdiction over the matter, the High Court does not have jurisdiction over it art. 121(1A), Federal Constitution. That calls for the determination of the approach that the court should take in determining the jurisdiction of the Syariah Court.
This court has very recently decided on this point in Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily bin Shaik Natar & 2 Ors. [2003] 3 CLJ 289; [2003] 2 SYA 14. In that case the subject matter was the adjudication and administration of the will of a deceased Muslim, even though the respondents (plaintiffs in the High Court) had prayed for remedies of a declaration that the land in question be surrendered to the estate of Shaik Eusoff bin Shaik Latiff, deceased, a declaration that the land in question be vested upon the respondents as executors of the deceased’s estate and for an account and, in the alternative, the respondents prayed for damages and an injunction.
Haidar Mohd. Noor CJ Malaya (delivering the judgment of the court) surveyed the earlier judgments of this court, the Supreme Court as well as of the High Court and concluded:
We respectfully agree with Abdul Hamid Mohamad J. that Isa Abdul Rahman cannot be supported.
It should be noted that “Isa Abdul Rahman” is the case of Majlis Agama Islam Pulau Pinang lwn. Isa Abdul Rahman [1992] 3 CLJ 1675; [1992] 1 CLJ (Rep) 201 (SC); [1991] 2 SYA 18. In that case, even though the land and mosque in issue were a “wakaf am”, the Supreme Court held that since the real order asked for by the respondents was a perpetual injunction to restrain the appellant or its agents from demolishing the said mosque and to restrain the appellant from taking any preliminary steps to demolish the mosque and erect a commercial building on the site, and since the Syariah Courts did not have jurisdiction to issue an injunction, therefore the High Court had jurisdiction over the suit. This approach is what has become known as “the remedy approach”. Secondly, the decision of Abdul Hamid Mohamad J referred to in the judgment of Haidar Mohd. Noor CJ (Malaya) refers to the case of Abdul Shaik bin Md Ibrahim & Anor v. Hussein bin Ibrahim & Ors. [1999] 3 CLJ 539 (HC); [1999] 2 SYA 16 which adopted the “subject matter” approach.
Therefore, this court has put to rest that the subject matter approach should be adopted.
In this case, there is no doubt that the subject matter of the case is the custody of the child. That clearly falls with the jurisdiction of the Syariah Court. Even learned counsel for the appellants did not dispute that. His argument was that since the Syariah Court had no jurisdiction to issue the writ of habeas corpus, the civil court had the jurisdiction to issue the same in this case. The short answer to that argument is that habeas corpus is the remedy sought and not the subject matter of the case.
Since the subject matter in question is the custody of the child and since that is clearly within the jurisdiction of the Syariah Court, by virtue of the provisions of art. 121(1A) of the Federal Constitution, the High Court has no jurisdiction over the matter.
The appellants had a right of appeal against the order of the Syariah Court dated 4 May 2001, but failed to exercise that right. For reasons best known to them they went to the High Court to get their remedy, which, in our view, is not available to them. They had, in fact, gone to the High Court to enforce an order of the Syariah Court, by way of a writ of habeas corpus. The High Court clearly has no jurisdiction to entertain the application. The learned Judicial Commissioner was right in her judgment. For these reasons, we dismissed the appeal.